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What is the last date before trial, on which a motion under CCP 128.5 can be heard? The other side has been acting in bad faith?

Sherman Oaks, CA |

Case is set for trial on May 16th. The defendant refused to negotiate at all during a court ordered mediation and offered nothing for settlement.

Attorney Answers 1


You are referring to an antiquated code section. You cannot obtain sanctions for an opponent’s bad faith under Code of Civil Procedure section 128.5 in an action filed after Code of Civil Procedure section 128.7 took effect in 1995.

California passed Section 128.5 in 1981 to permit sanctioning lawyers or litigants for frivolous motions or delay tactics. Section 128.7 passed in 1994 but by its terms applies only to bad-faith assertions in pleadings or papers, and only to cases filed in 1995 or later.

Therefore, you cannot use 128.7 either.

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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